STATE OF NEW JERSEY VS. SAMUEL G. CARUTHERS (16-06-0243, SUSSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5121-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent/
Cross-Appellant,
v.
SAMUEL G. CARUTHERS,
Defendant-Appellant/
Cross-Respondent.
Submitted April 30, 2020 – Decided July 23, 2020
Before Judges Alvarez and Suter.
On appeal from the Superior Court of New Jersey, Law
Division, Sussex County, Indictment No. 16-06-0243.
George T. Daggett, attorney for appellant/cross-
respondent.
Francis A. Koch, Sussex County Prosecutor, attorney
for respondent/cross-appellant (Shaina Brenner,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
A jury convicted defendant Samuel G. Caruthers of third-degree
endangering the welfare of a child by a non-caretaker, N.J.S.A. 2C:24-4(a)(2)
(count one); disorderly persons simple assault, a lesser-included, N.J.S.A.
2C:12-1(a)(1) (count two); and fourth-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(d) (count five). Defendant had been originally charged with
third-degree aggravated assault by attempting to cause significant bodily injury,
N.J.S.A. 2C:12-1(b)(7). The jury acquitted him of third-degree aggravated
assault by attempting to cause injury with a deadly weapon, N.J.S.A. 2C:12-
1(b)(2) (count three); and third-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(d) (count four).
Defendant unsuccessfully sought admission into the pretrial intervention
program (PTI). Defendant was sentenced, on June 26, 2019, to a three-year
probationary term subject to conditions. 1 He now appeals his convictions,
asserting that the child endangering verdict, when juxtaposed to the disorderly
persons simple assault, means the indictable offense must be dismissed as
internally inconsistent, that the unlawful possession of a weapon should be
dismissed because it is inconsistent with his acquittal on the possession of a
1
An amended judgment was entered on July 9, 2019, to include a no contact
provision.
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weapon for unlawful purpose, and that the trial judge erred in instructing the
jury that defendant need not be aware of the age of the assault victim in order
for him to be convicted of child endangering. For the reasons that follow, we
affirm.
The circumstances leading to the charge can be briefly summarized. On
February 14, 2016, twelve-year-old J.A. and his family were on the beginner's
slope of a ski resort. J.A. was learning how to snowboard; the rest of the family
to ski. As J.A. came down the slope, he saw a skier in front of him, but could
not stop. He accidentally collided with the skier, causing him to fall. It was the
second time J.A. had attempted to snowboard. When he tried to stand, he
struggled to release his feet from the snowboard straps when he felt pain in his
stomach from someone jabbing a ski pole into him. The assailant then punched
him five or six times in the face and his left side while he lay curled up in the
snow. The subsequent hospital visit record reflected that J.A. suffered a facial
contusion, lip contusion, and a bruised lip. He complained of soreness to his
torso. Hospital records indicated that J.A. was five foot six and weighed 114
pounds.
The State also presented several eyewitnesses who corroborated J.A. and
his family's account, as his parents witnessed the incident from the bottom of
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the ski slope. One eyewitness, an employee of the resort, said defendant
purposely skied into the snowboarder, striking him with the curved front of his
skis in the torso, and "aggressive[ly]" punching J.A. several times in the face.
Defendant testified that he and his family were also enjoying a holiday on
the ski slopes. He was teaching his ten-year-old son how to navigate the
beginner's slope when he saw J.A., on the snowboard, strike his child. He
claimed he grabbed at J.A.'s jacket after seeing him collide with his son while
traveling at a high rate of speed, to prevent him from crashing into his son again.
Defendant said J.A. took a swing at him, he automatically swung back, and hit
him once while J.A. was on the ground. He admitted denying to police that he
had struck J.A., had not realized J.A. was a child, and saw no injuries on him.
Defendant said his intent "was trying to preserve [his] son's life."
The judge instructed the jury in accord with the proposed charge,
discussed during the charge conference. After the jury was charged, defendant
objected to the instruction that defendant need not know the age of the child.
The basis for his objection, then and now, is that if there was a legitimate reason
defendant could not have perceived J.A.'s age because of his clothing, his
position in the snow, the fact the child had facial hair, and that he swore when
struck, the jury could convict only if it found defendant knew the child's age.
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The judge responded that he took the relevant language from the model charge.
He refused to dismiss the endangerment charge.
On appeal, defendant raises the following points:
POINT I
N.J.S.A. 2C:24-4(a)(2) DOES NOT APPLY TO A
SIMPLE ASSAULT.
POINT II
THE JURY’S VERDICT OF GUILTY AS TO
POSSESSION OF A WEAPON IS INCONSISTENT
WITH ITS OTHER FINDINGS.
POINT III
THE COURT BELOW ERRED IN TELLING THE
JURY THAT THE DEFENDANT DID NOT HAVE
TO KNOW THE AGE OF THE JUVENILE.
By way of cross-appeal, the State raises the following issue:
POINT I
THE LOWER COURT ERRED WHEN IT RULED
THAT THE STATE COULD NOT USE THE
STATEMENTS MADE BY THE DEFENDANT
DURING HIS PRETRIAL INTERVENTION
INTERVIEW FOR IMPEACHMENT PURPOSES.
I.
"Clear and correct jury charges are essential for a fair trial, and the failure
to provide them may constitute plain error." State v. Gonzalez, 444 N.J. Super.
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62, 76 (App. Div. 2016). "The proper standards of review of jury instructions
are well-settled: if the party contesting the instruction fails to object to it at trial,
the standard on appeal is one of plain error; if the party objects, the review is for
harmless error." Willner v. Vertical Reality, Inc., 235 N.J. 65, 80 (2018); see
also Dynasty, Inc. v. Princeton Ins. Co., 165 N.J. 1, 17-18 (2000). "[I]n
reviewing any claim of error relating to a jury charge, the 'charge must be read
as a whole in determining whether there was any error'. . . ." Gonzalez, 444 N.J.
Super. at 70-71 (quoting State v. Torres, 183 N.J. 554, 564 (2005)). In addition,
"the effect of any error must be considered 'in light of the overall strength of the
State's case' . . . ." Id. at 71 (quoting State v. Walker, 203 N.J. 73, 90 (2010)).
Here, defendant objected to the child endangerment instruction, albeit
after the judge charged. Giving him the benefit of the doubt, we review use of
the charge for harmless error. Defendant contends that the jury's conviction of
a disorderly persons simple assault is inherently inconsistent with the child
endangering conviction, compelling dismissal of that count of the indictment.
Child endangerment occurs when "[a]ny person [other than a
caretaker] . . . who causes the child harm that would make the child an abused
or neglected child as defined in R.S.9:6-1, R.S.9:6-3, and section 1 of P.L.1974,
c. 119 (C.9:6-8.21) is guilty of a crime . . . of the third degree." N.J.S.A.
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2C:24-4(a)(2) (emphasis added). The statutory elements the State must prove
beyond a reasonable doubt are that the victim was a child, defendant caused the
victim harm that would make him abused or neglected, and that defendant knew
the conduct would make the child abused or neglected. N.J.S.A. 2C:24-4(a)(2).
The judge's instruction tracked the relevant model jury charge. See Model Jury
Charge (Criminal), "Endangering the Welfare of a Child, Abuse or Neglect
(Third Degree) (N.J.S.A. 2C:24-4(a)(2))" (rev. March 9, 2015). Defendant
anchors the argument on the fact no mention is made in those portions of Title
9 which encompass the conduct in this case.
There is no question that confusion arises with reference to child
endangerment when the conduct refers back to definitions found in Title 9.
However, we have previously stated that "[t]he drafters of N.J.S.A. 2C:24-4(a)
of the Criminal Justice Code expressed the intention to 'incorporate the crime
now defined in N.J.S.A. 9:6-3 without substantial change except for the penalty
provision.'" State v. D.V., 348 N.J. Super. 107, 114 (App. Div. 2002) (quoting
Final Report of the New Jersey Criminal Law Revision Commission, Volume
11 at 259 (1971)). We have also said that terms, such as abuse, are defined in
N.J.S.A. 9:6-1, and incorporated into 9:6-3. State v. Demarest, 252 N.J. Super.
323, 328 (App. Div. 1991). In State v. N.A., 335 N.J. Super. 143, 153-54 (App.
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Div. 2002), we characterized the offenses of endangering the welfare of children
and Title 9 offenses related to cruelty and neglect of children as the same—the
only difference being the degree of the offense and the penalty. See also
Demarest, 252 N.J. Super. at 329-33. Each criminalizes the same harm or risk
of harm to the child; each requires the same proof of "knowing culpability."
N.A., 355 N.J. Super. at 153 (quoting Demarest, 252 N.J. Super. at 333).
The statute encompasses the harm inflicted in this case, albeit minimal,
by a stranger. J.A.'s swollen and bruised lip, laceration to the face, and sore and
bruised torso is the type of harm proscribed in Title 9. No precedent leads us to
conclude that because the conduct in this case was a simple and not an
aggravated assault, the conduct is excluded from child endangering. The statute
has consistently been held to incorporate all the definitions included in Title 9 ,
and the assault in this case falls within that category. Ultimately, the wrongful
conduct was an assault upon a child. Thus, the court did not err in failing to
dismiss the child endangering charge.
Furthermore, defendant's argument that he was improperly charged with
endangering as opposed to a Title 9 offense also lacks merit. In State v. Fuqua,
234 N.J. 583, 596 (2018), among other things, the court explained that the
interplay between the statutes gives a prosecutor's office discretion to decide
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under which to proceed. The legislative intent appears to be to defer to the
discretion of a prosecutor regarding what charges are presented to a grand jury.
In that fashion, there is judicial oversight through the grand jury and the petit
jury of charging decisions. N.A., 355 N.J. Super. at 153-54. Thus, the court did
not err in both charging the jury in accord with the Model Jury Charge as to
child endangerment and refusing to vacate the conviction even though the jury
convicted defendant of simple assault.
II.
Defendant further contends that the jury verdict was internally
inconsistent because the jury acquitted him of third-degree assault with a deadly
weapon and possession of a weapon for unlawful purposes, instead finding him
guilty of unlawful possession of a weapon. This point also lacks merit.
First, even if we agreed that the verdicts are internally inconsistent, which
we do not, inconsistent verdicts are permissible in this state. State v. Grey, 147
N.J. 4, 11 (1996). In reviewing an inconsistent verdict, the only question is
whether the charge on which the jury convicted had sufficient support in the
record. See State v. Banko, 182 N.J. 44, 56 (2003). That is true in this case,
where eyewitnesses corroborated J.A.'s version of events.
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The argument that the jury finding was inconsistent is not necessarily
accurate. N.J.S.A. 2C:39-5(d) states that any person "who knowingly has in his
possession any other weapon[, such as a ski pole,] under circumstances not
manifestly appropriate for such lawful uses as it may have is guilty of a
crime . . . ." That means the jury credited the fact that the ski pole was being
used for its lawful purpose up until defendant assaulted J.A. Once he made the
decision to strike the child, then the pole became a weapon and became an object
being used inappropriately. This argument lacks merit.
III.
Finally, defendant contends that the judge erred by instructing the jury
that the State need not prove that defendant knew J.A.'s age in deciding whether
he was guilty of child endangering. The judge analogized the charge to sexual
assault cases in which knowledge of the victim's age is irrelevant—the
significant factor being the victim's actual age. In this case, the analogy seems
quite apt. But the State should not have to present proof of knowledge, an
elusive task involving many subjective factors. A victim who looks like a child
to one person may not to another. Defendant's claim that J.A. looked like an
adult is not supported by the hospital record of the victim's size and weight.
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And, by immediately attacking J.A., as opposed to going to the aid of his
own child, defendant lost the opportunity to assess the characteristics—the
age—of the victim. In any event, the judge's charge tracked the model jury
instruction. It required the State to prove beyond a reasonable doubt only that
the victim was a child, that defendant knowingly caused him harm that would
make the child abused or neglected, and that defendant knew such conduct
would cause the victim harm. Model Jury Charge (Criminal), "Endangering the
Welfare of a Child, Abuse or Neglect (Third Degree) (N.J.S.A. 2C:24-4(a)(2))"
(rev. March 9, 2015). In any event, a jury charge is presumed to be proper if it
tracks the model jury charge. See State v. R.B., 183 N.J. 308, 325 (2005).
Nothing requires the State to prove that defendant could not be convicted unless
he knew the child's age.
IV.
The State argues by way of cross-appeal that the trial court should not
have barred the use of defendant's PTI interview statements for impeach ment
purposes. Since we affirm the conviction, we do not reach the moot cross-
appeal.
Affirmed.
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